TABLE OF CONTENTS

2 FirstNet’s latest legal interpretations make opt-out alternative less

appealing to states, territories

4 ESChat leverages FirstNet spectrum in pilot LTE networks to deliver

reliable PTT, other services

6 Links to videos, stories and podcasts

8 New Jersey, Pennsylvania officials highlight successful public-safe-

ty LTE use during papal visit

10 CONTINUED.. FirstNet’s latest legal interpretations make opt-out

alternative less appealing to states, territories

EDITOR’S LETTER

FirstNet’s latest legal

interpretations make opt-out
alternative less appealing to
states, territories
by Donny Jackson | October 20 , 2015

I
t is a right that state lobbyists fought hard to include in the 2012 federal legislation
that created FirstNet, which is charged with overseeing the development and
maintenance of a nationwide public-safety broadband network—the ability for a
state or territory to “opt out” of FirstNet. After last week’s release of the text for 64
FirstNet legal interpretations, many in the industry question whether “opt out” really
is a practical option.
This is not a surprise. FirstNet t h e m . F i r s t N e t to o k l o g i c a l After all, this is going to be a
officials have indicated their positions in the interpretations, difficult challenge as a
intentions on the subject for given the o rganizatio n’s nationwide project; trying to
s o m e ti m e; t h e f in a l l e ga l mandate to build a nationwide integrate a bunch of opt-out
interpretations just codified network with limited funding. states into the system promises
to be more difficult and could
have a negative impact on its
economic viability.
Before delving further into the
topic, we must provide an
important clarification for anyone
reviewing the “opt out” alternative
for the first time: choosing the
opt-out alternative does NOT
mean that a state or territory
would actually get out of FirstNet.
The “opt out” term is used in the
law, but it is not a very accurate
depiction of the alternative.
Under the current law, every
state and territory will be part of
the nationwide public-safety
broadband network overseen
by FirstNet. For states and
territories, the opt-out alternative
is about determining which
entity will build and maintain the
LT E radi o ac c e s s n et wo r k
(RAN) within the jurisdiction.
The path of least resistance is
for a governor to accept the
plan offered by FirstNet, which
then is responsible for all costs
associated with the build out
and maintenance of the public-
safety LTE network within the
state or territory. The alternative
is for the governor to choose the
“opt- out” alternative, which
would call for the state to deploy
and maintain the RAN within its
borders while continuing to use
FirstNet’s LTE network core and
700 MHz spectrum.
By law, the decision rests with
the governor of each state or
territory. The reality is that a
governor unilaterally making a
decision to opt out—thereby the
state or territory to pay network
costs in perpetuity—against the
wishes of the state legislature
and others would be taking a
huge political risk, but that is
allowed by law.
S o o n a f te r F i r s t N e t w a s
created, many governors
expressed interest in the opt-out
alternative, which was
understandable —it was
something new, and it outlined
a specific role for each governor.
In addition, the opt- out
process got many governors
thinking about myriad
possibilities and synergies.
S o m e s aw F ir st N et a s a
chance to generate revenues
within the state that could be
used to bolster depleted
budgets still suffering from the
aftermath of the global credit
crisis of 20 0 8, but FirstNet
officials quickly tried to quash
this notion, noting that the law
mandates that revenues be put
back into the network.
Many officials from densely
populated states liked the notion
of putting revenues back into the
network, figuring that keeping
the revenues within the state
would mean that first responders
in their jurisdictions could get
access to a better network with
lower subscriber fees.
But FirstNet’s legal
interpretations undermine that
idea, removing most of the
“reward” potential from the risk/
reward equation that governors
must weigh. Without getting into
a lot of legalese, FirstNet’s
position is that densely
populated states choosing to
opt out must contribute
financially to the nationwide
public-safet y broadband
initiative, just as they would had
t h ey ac c e pte d F ir st N et ’s
deployment plan for the state.
“We need to ensure that any
revenue that ’s generated —
particularly in highly dense,
p o p u l a t e d a re a s t h a t w i l l
generate significant value for
the excess capacity available—
that money is appropriately
reinvested back into the network
in a way … that benefits the
entire nation,” FirstNet Acting
Chief Counsel Jason Karp said
during the last FirstNet board
meeting. “We don’t want the
national deployment to, in any
w a y, s u f f e r b e c a u s e a
particularly rich state that is able
to generate significant revenue
because of that population
density retains that revenue to
create essentially a higher-
quality radio access network in
their state than we have in other
localities around the country.
“ It ’s c r i t i c a l t h at we a re
leveraging the high-density,
high-revenue-generating areas
in order to pay for the
deployment nationally. We think
that’s absolutely what Congress
intended. We think that’s the
intent of the act and what the
act says, and we reiterate that
conclusion [in the final legal
interpretations].”
What is the risk for an opt-out
state? The biggest factor is how
much it costs a state or territory
to build o ut, maintain and
upgrade the net work in its
jurisdiction.
The good news for states is
that initial deployment figures
should be fairly well known by
the time governors make their
d e c i s i o n s — a f te r a l l , b o t h
FirstNet and any opt-out state
will have done ex tensive
research into this area . In
addition, LTE technology is
mature enough that estimating
normal maintenance costs can
be done with decent accuracy.
The bad news for states is that
no one has any idea how much it
will cost to upgrade the network
or when upgrades will happen.
What we do know is that opt-out
states will have to adhere to all
of FirstNet’s network policies,
no matter how often or when
they may be altered.
“Our network policies are
something that are going to be
deployed on an ongoing
basis—they’re going to change,
they’re going to be variable for a
long period of time, and they’re
c r i t i c a l ,” K a r p s a i d . “ W e
preliminarily concluded in the
original notice and confirm that
our network policies have to
apply across the board, whether
a state assumes that
responsibility or whether it’s
FirstNet responsibilit y. And
that’s key.
“That’s key for interoperability,
to ensure that we have one
nationwide network, no matter
who is responsible for the
deployment of pieces of it. [It’s
key to ensure] that public safety,
when they cross state
boundaries, are getting the
exact same user experience in
State A as they are in State B,
because we know public-safety
incidents don’t stop at the state
border.”
In other words, governors will
not know what the ongoing
costs will be, if they choose the
o p t - o u t a l te r n a t i v e . F o r a
governor making an opt-out
decision, the obligation to
remain in sync with FirstNet’s
technical policies could be
problematic.
What if FirstNet calls for an
u p g rad e to t h e late st LT E
URGENTCOMM.COM
rev i s i o n — o r 5 G , w h i c h i s
expected to be deployed by
carriers in less than 10 years—
continued on page 10
3
 ESChat leverages FirstNet
spectrum in pilot LTE networks
to deliver reliable PTT, other
services by Donny Jackson | November 10, 2015
M
ission-critical push-to-
talk (PTT) functionality
likely will not be part of
LTE equipment for some time,
but Band 14 700 MHz spectrum
licensed to FirstNet promises to
provide the dedicated
resources needed to make
over-the-top applications like
ESChat reliable enough for
f i r s t- re s p o n d e r u s e to d ay,
a c c o rd i n g t o J o s h L o b e r,
president of SLA Corp., which
developed ESChat.
“The challenge we always
have is the one that FirstNet is
being built to address, and that
is having dedicated spectrum,”
Lober said during an interview
with IWCE’s Urgent
Communications. “Better than
99% of the time, operating on
the commercial network works.
But, when an incident occurs,
the public utilizes all of the
available bandwidth. If it’s at a
specific incident site, it’s often
taken up with pictures and
video, and these things
degrade and impede the
performance of any application
that relies on data, including
NOVEMBER 2015
ESChat.
“ FirstNet ’s dedicated
spectrum resolves that. Using
today’s technology, FirstNet is
capable of supporting push-to-
talk voice and not have it be
affected by what’s happening
IWCE’S URGENT COMMUNICATIONS
with the public.”
This has been demonstrated
in numerous pilots this year,
with first responders using
ESChat for push-to-talk voice
communications on Band 14
public-safety LTE pilot networks
deployed this year at the FIS
2 015 Alpine World Ski
Championships in Colorado,
the New Mexico State Fair and
the Albuquerque Balloon
F e s t i v a l . T h e re s p o n s e t o
ESChat as a PTT solution was
4
ver y positive, with FirstNet
Colorado offering the following
assessment from the proof-of-
concept network deployed at
the ski championships.
“Push -to -talk (P T T ) is a
requirement, not an option: Far
and away, the most positive
feedback was the abilit y to
have PTT communications on
the LTE device,” the FirstNet
Colorado repor t states.
“Additionally, there was a strong
sentiment that the responders
desired to use a single device
for all operations. For example,
one first responder said (while
h o lding up his L M R radio)
‘When can I get rid of this?’”
S in c e 2 0 0 9, E S C h at h a s
integrated with LMR networks
using conventional radio-over-
IP (RoIP) gateways, but the
interest level in the ESChat P25
ISSI media gateway—a solution
that leverages the ISSI standard
in P25 to enable interoperability
between a P25 network and
ESChat being used over an LTE
net work— has increased
dramatically during the past 12
months, Lober said.
“That enables us to take full
ad va nt ag e o f t h e fe at u re s
supported in ISSI,” Lober said.
“We are able to do not only the
group calling, which is available
with the conventional RoIP
gateway, but we are also able
to take advantage of private
calls from a single LTE ESChat
device to a single P25 radio,
group calls and emergency
calls.
“The ISSI also supports
networkwide radio IDs, so each
radio user knows which LTE
user is talking, and vice versa.
And because ESChat includes
integrated mapping, we’re also
able to overlay the location of
the P25 radios on the ESChat
map screens.”
While ESChat is best known
in the industry for its push-to-
talk capability, SLA engineers
continually have developed
new functionalities in the
application, Lober said.
“ We have evolved our
product to not only be a push-
to-talk product, but an
encrypted, secure
communications solution that
includes push-to -talk voice,
secure text and image
messaging, as well as location
tracking and mapping,” he
said. “So, we’ve evolved our
system to include many
features.
“The reliability of our system
is well established, and our
product is used by the U.S.
military, the federal government,
state and local law enforcement
across the country, as well as
industry, including some of the
nation’s largest transportation
c o m pa nie s, h otels, sch o o l
districts and universities.”
B u t t h e re li a b ili t y o f t h e
application is dependent
largely on the reliability of the
network, and having a
dedicated network like the one
promised by FirstNet would
a d d re s s t h a t f u n d a m e n t a l
need, Lober said.
“ It ’s a game changer for
those of us who require real-
t i m e i nfo r m a t i o n , a n d t h a t
includes push-to-talk voice,”
Lober said. “If we’re able to take
the Band Class 14 spectrum
availability, add that on top of
what we’re doing with ESChat
and secure push-to-talk voice,
and then we can tie that into the
existing [LMR] radio networks, it
really provides a complete
solution. Now, you’ve got truly
one ubiquitous system whereby
first responders can
interoperate and communicate
between agencies.”
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STORIES
Click on links below to view articles in separate window

• September 8, 2015
New Jersey public-safety LTE assets help Atlantic City use video to secure events
• September 25, 2015
Preventing a devastating, OPM-like hack of FirstNet
• September 29, 2015
FirstNet is sending out an invite (RFP). Will anyone come?
• October 1, 2015
New Jersey, Pennsylvania officials highlight successful public-safety LTE use during papal visit
• October 2, 2015
FirstNet opts for nationwide acquisition approach for final RFP
• October 5, 2015
FirstNet says opt-out states must share revenues, meet nationwide network policies
• October 8, 2015
FirstNet releases cybersecurity plan, seeks comments by Oct. 16—for now
• October 9, 2015
FirstNet extends comment period on cybersecurity public notice to Oct. 21
• October 19, 2015
Congress grants five-year extension for LA-RICS, other BTOP grant recipients

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 New Jersey, Pennsylvania
officials highlight successful
public-safety LTE use during
papal visit by Donny Jackson | October 1, 2015

A s Pope Francis visited Philadelphia last weekend, law-enforcement personnel

responsible for ensuring the pontiff’s safety had unprecedented access to
real-time video and other key applications, thanks to the use of deployable
public-safety LTE units provided by the state of New Jersey’s JerseyNet program.
During an IWCE’s Urgent Communications
webinar sponsored by InfoVista, Pennsylvania
State Police Capt. William Williams yesterday
said that the four-site deployable public-safety
LT E n e t w o r k w o r ke d “ex t re m e l y w e l l ”
throughout the Pope Francis visit.
“One of the most significant accomplishments
was the proof of concept that it worked and
how it worked in an urban environment during
an incident like this,” Williams said during the
webinar, which is available on demand at this
link. “The fact [was] that we could stream high-
definition video and that we had full
connectivity the whole weekend, with no
interruptions.”
Fred Scalera—the public-safety broadband
m a n ag e r f ro m N e w J e r s ey ’s O f f i c e o f
Homeland Security & Preparedness—echoed
this sentiment, noting that the deployed system
supported about 40 users throughout the
NOVEMBER 2015

Pope Francis visit, averaging about 4.5 GB per

hour of total usage without ever reaching the
network’s maximum capacity.
“We got to do a lot of different things, and it
worked very well,” Scalera said during the
webinar. “Sharing video went well. Overall, if
IWCE’S URGENT COMMUNICATIONS

this proves to be where our network is going,

I’m ver y happy, and I think we’ll have a
successful deployment.”
To s u pp o r t t h e Po p e Fra n cis v isi t to
Philadelphia, two JerseyNet system-on-wheels
(SOW) trailers were deployed in the upper
levels of separate parking garage and were
connected via microwave to a JerseyNet SOW
in Camden, N.J., Scalera said. In case the
microwave link was disrupted, the sites also
have satellite connectivity, which provides less
data throughput than the microwave link but
wo uld maintain so m e c o m municatio ns,
including all voice communications, he said.
In addition, two vehicles with deployable
LTE gear were used in Pennsylvania to provide
coverage when Pope Francis traveled outside
of the Philadelphia coverage area, such as
when he visited a prison, Scalera said.

8
 Williams said that the statewide LMR system
served as the primary means of communication
for law enforcement during the papal visit, but
LTE communications supplemented and
interoperated with the LMR network.
“Because [JerseyNet LTE] was not our
primary means of communication, it was not
utilized extensively by a lot of people,” Williams
said. “But those who did use it found that it
worked very well. They had phone capabilities
and video capabilities.”
Given the success of this deployment,
Williams said he would like to expand the
partnership with New Jersey next year to
provide similar capabilities over a greater
geographic area when Philadelphia host the
Democratic National Convention next year.
Scalera said the Mutualink solution that is
designed to support interoperability and
seamless roaming as a user travels between
the Band 14 public - safet y net work and
co mmercial wireless coverage “worked
perfectly” during the papal visit.
Scalera said that all sites in the JerseyNet
system were completed by the Sept. 3 0
deadline mandated by law as part of the
B r o a d b a n d Te c h n o l o g y O p p o r t u n i t i e s
Program (BTOP) that funded the public-safety
LTE system. Now that the papal visit is
complete, JerseyNet officials will focus on
testing and optimizing the network, with the
hope of being able to begin running some
applications on the system within a month,
Scalera said.

“..LTE network worked ‘extremely well’ throughout the

Pope Francis visit. “One of the most significant accomplishments
was the proof of concept that it worked and how it worked in an
urban environment during an incident like this..”
 continued from page 3
at the sam e tim e that the
state’s economy has taken a
massive hit because of
problems in a key industry
sector ? Under the legal
interpretations, the state would
have to find the money
somewhere and pay for the
upgrade within its borders.
Imagine the uproar that would
ensue if a jurisdiction had to lay
off state-police personnel to
fund an upgrade to an LTE
network that troopers were
expected to use.
So, the bottom line is that
FirstNet’s final legal
interpretations severely limit an
opt-out state’s potential reward
for building and maintaining its
own RAN, but the risks are
significant. To some extent, an
opt-out state would be writing a
blank check, with FirstNet’s
network policies—something
the state would not control—
dictating the dollar amount and
when additional payments
would be made.
In addition, an opt-out state
would need to have the
necessary governance and
s u p p o r t i n f r a s t r u c t u re t o
administer the oversight of its
RAN, which will require extra
financial and personnel
resources that many states lack.
The financial factors
associated with the opt-out
alternative are discouraging,
the logistical gauntlet that an
o pt- o u t st ate w ill h ave to
navigate approach the level of
being scar y. Not only is it
complex and full of difficult
timelines for the opt-out state, it
do esn’ t address the m ost
fundamental issue for any
wireless network—the terms
associated with accessing the
spectrum needed to operate
the system—until the end of
the process.

Here is a summary of the opt-out process:

— Step 1 — FirstNet presents its deployment plan to a state/territory. In the legal

interpretations, FirstNet states that there is some flexibility in the plan and stresses
that it is not a contract. Many are interpreting that to mean that FirstNet is not
necessarily bound to meet the terms of the plan; of course, public-safety agencies
always can choose not to subscribe, if they don’t like FirstNet’s implementation of
the plan.
— Step 2 — After receiving the state plan from FirstNet, the governor for the state/
territory has 90 days in which to opt out of the FirstNet plan for the state. This
timetable is dictated by law. If no action is taken, FirstNet will proceed with its plan
for the state, according to the legal interpretations.
— Step 3 — If the governor chooses the opt-out route, the state/territory has 180
days to complete its RFP process and submit it to the FCC for its approval. Again,
this timetable is dictated by law. Getting a state-level RFP done in six months
promises to be challenging. As if the logistics were not difficult enough, there also
is the reality that bidders likely will not have all details when responding to the
RFP, because the state will not have a spectrum lease to use FirstNet’s 700 MHz
airwaves, so the associated costs of using the spectrum probably will not be certain.
— Step 4 — The opt-out state submits its RAN plan to the FCC. According to the
law, this review would be done primarily to determine whether the opt-out state’s
plan will be interoperable with the nationwide FirstNet initiative. To some extent,
NOVEMBER 2015

FirstNet’s legal interpretation is that this stage is a “point of no return” for the opt-
out state: if the FCC approves a state’s opt-out plan, then the state immediately
is on the hook to implement the plan, and FirstNet no longer has an obligation to
build out the RAN in that state. However, it is likely that the state still will not have
a spectrum lease at this point.
— Step 5 — The opt-out state must get approval from the National Telecommunications
IWCE’S URGENT COMMUNICATIONS

and Information Administration (NTIA), which must weigh the cost-effectiveness of

the opt-out plan. This step is outlined in the law passed by Congress. FirstNet’s
legal interpretation is that the cost-effectiveness of a state’s plan should include an
evaluation of its impact on the nationwide initiative, not just its effectiveness within
the opt-out state.
— Step 6 — Opt-out state/territory must negotiate a spectrum-lease agreement
to use FirstNet’s airwaves. It is only logical that an opt-out state needs access to
spectrum to implement its RAN. FirstNet is not mentioned in this portion of the law,
which has caused some to believe that the spectrum lease should be negotiated
with NTIA. FirstNet’s legal interpretation is that the negotiation will be between
the opt-out state and FirstNet, which holds the license to the spectrum.

10
 Whether NTIA or FirstNet
should negotiate the spectrum
lease is legally debatable, but
the bottom line is that FirstNet is
part of NTIA. The more important
implication is that an opt-out
state would be sitting at the
negotiating table with FirstNet/
NTIA with very little leverage,
from a legal standpoint. After all,
the opt-out state has to agree to
whatever terms that FirstNet or
NTIA dictate, or it could be
without a public-safety
broadband network entirely—
remember, FirstNet’s obligation
to build a RAN in the opt-out
jurisdiction ended with the FCC
approval. Of course, there may
be other political or public-
opinion tactics that a state could
use to improve its negotiating
position.
FirstNet also is subject to the
fundamental rule of government:
if someone doesn’t like a law,
they can always try to change it
in Congress or in court. My initial
thought is that it would be tough
to get Congress to revamp the
FirstNet law, but who knows
what the politics will be by the
time that governors make opt-
out decisions.
A legal challenge would be
intriguing, because the law was
written in a manner that certainly
leaves ro o m for debate on
several issues, which is why
FirstNet has spent more than a
year to develop its legal
interpretatio ns. H owever, I
question whether any state or
territory believes that a legal
challenge would be the best
use of resources, and it could
have negative political
ramifications.
A final issue that the governor
of potential opt-out states should
consider is an intangible one:
the role that the state or territory
wants to play in relation to
FirstNet and the public-safety
agencies in its jurisdiction.
If a governor accepts
FirstNet’s plan for the state, then
the state or territory can be a
full-time supporter and advocate
for public - safet y agencies’
requests with FirstNet—it will be
up to FirstNet to come up with
the funding and try to meet the
requests. If the requests are not
met, FirstNet is the “bad guy,”
and the state/territory can tell
the public-safety agency about
other broadband options,
knowing that it will not impact its
budget.
In contrast, an opt-out state
almost certainly will face some
awkward situations. If a public-
safety agency makes a request
that cannot be met, the opt-out
state or territory becomes the
“bad guy” for not implementing
it. In addition, there is a chance
that the arrangement will mean
the state budget co uld be
impacted by the willingness of
public-safety agencies in its
jurisdiction to subscribe to the
network, so its advocacy for
public-safety choice could be
met with skepticism.
There also are potential issues
in the relationship with FirstNet,
as well. Many state officials
initially found the opt- out
alternative appealing, because
they perceived that it would give
the state and territory greater
control over the public-safety
b ro adba n d n et wo r k i n t h e
jurisdiction. However, if an opt-
out state has to adhere to
FirstNet’s network policies, that
level of control has been called
into question.
Now, it should be clear that
F i r s t N e t h a s n o t o b j e c te d
formally to states or territories
choosing the opt-out alternative,
nor should it—doing so would
be in direct opposition to the law
passed by Congress. However,
while staunchly acknowledging
each state’s right to pursue the
opt-out alternative, FirstNet’s
final legal interpretations have
made an already difficult opt-out
process “about as distasteful as
possible,” in the words of one
Beltway source.
Indeed, given the financial,
logistical and intangible factors
involved in the opt-out process,
it is difficult to imagine scenarios
in which governors would want
to pursue this much-debated
URGENTCOMM.COM
alternative to accepting the
FirstNet plan for their states,
unless the rules are changed by
Congress or the courts.
11
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